Citation Nr: 0827853
Decision Date: 08/18/08 Archive Date: 08/28/08
DOCKET NO. 05-26 687 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from July 1968 to July 1970.
He died in May 2004. The appellant is his surviving spouse.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from decisions of December 2004 and later
by the Department of Veterans Affairs (VA), Atlanta, Georgia,
Regional Office (RO).
FINDINGS OF FACT
1. During his lifetime, the veteran established service
connection post-traumatic stress disorder, rated as 50
percent disabling.
2. The veteran died on May [redacted], 2004 at the age of 55. The
cause of death listed on his death certificate was congestive
heart failure. Also listed under the heading "other
significant conditions" was atrial fibrillation.
3. The congestive heart failure and atrial fibrillation
noted on the death certificate were not present during
service, and were not manifested within one year after
service.
4. The post-traumatic stress disorder did not cause or
aggravate the congestive heart failure and/or atrial
fibrillation.
5. The death was not proximately due to or the result of the
service-connected disability, and the service-connected
disability did not materially accelerate the death.
CONCLUSION OF LAW
A service-connected disability did not cause or contribute
substantially or materially to cause the veteran's death.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310 (West
2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309, 3.310, 3.311,
3.312 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant is the veteran's surviving spouse. She seeks
service connection for the cause of the veteran's death. She
asserts that the veteran developed disabilities in service
which led to his death. She states that his post-traumatic
stress disorder caused him to develop heart problems which in
turn caused his death.
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by service. See
38 U.S.C.A. §§ 1110, 1131. If a chronic disorder such as a
cardiovascular disease is manifest to a compensable degree
within one year after separation from service, the disorder
may be presumed to have been incurred in service. See
38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309. Service connection may also be granted for disability
shown to be proximately due to or the result of a service-
connected disorder. See 38 C.F.R. § 3.310(a). This
regulation has been interpreted by the Court to allow service
connection for a disorder which is caused by a service-
connected disorder, or for the degree of additional
disability resulting from aggravation of a nonservice-
connected disorder by a service-connected disorder. See
Allen v. Brown, 7 Vet. App. 439 (1995).
Recently, the regulation was revised to incorporate the
Court's ruling. See 71 FR 52747, Sept. 7, 2006. The
regulation now provides as follows:
(a) General. Except as provided in §3.300(c), disability
which is proximately due to or the result of a service-
connected disease or injury shall be service connected. When
service connection is thus established for a secondary
condition, the secondary condition shall be considered a part
of the original condition.
(b) Aggravation of nonservice-connected disabilities. Any
increase in severity of a nonservice-connected disease or
injury that is proximately due to or the result of a service-
connected disease or injury, and not due to the natural
progress of the nonservice-connected disease, will be service
connected. However, VA will not concede that a nonservice-
connected disease or injury was aggravated by a service-
connected disease or injury unless the baseline level of
severity of the nonservice-connected disease or injury is
established by medical evidence created before the onset of
aggravation or by the earliest medical evidence created at
any time between the onset of aggravation and the receipt of
medical evidence establishing the current level of severity
of the nonservice-connected disease or injury. The rating
activity will determine the baseline and current levels of
severity under the Schedule for Rating Disabilities (38 CFR
part 4) and determine the extent of aggravation by deducting
the baseline level of severity, as well as any increase in
severity due to the natural progress of the disease, from the
current level.
The VA regulation pertaining to claims for service connection
for the cause of death, 38 C.F.R. § 3.312, provides as
follows:
(a) General. The death of a veteran will be considered
as having been due to a service-connected disability when the
evidence establishes that such disability was either the
principal or a contributory cause of death. The issue
involved will be determined by exercise of sound judgment,
without recourse to speculation, after a careful analysis has
been made of all the facts and circumstances surrounding the
death of the veteran, including, particularly, autopsy
reports.
(b) Principal cause of death. The service-connected
disability will be considered as the principal (primary)
cause of death when such disability, singly or jointly with
some other condition, was the immediate or underlying cause
of death or was etiologically related thereto.
(c) Contributory cause of death. (1) Contributory cause
of death is inherently one not related to the principal
cause. In determining whether the service-connected
disability contributed to death, it must be shown that it
contributed substantially or materially; that it combined to
cause death; that it aided or lent assistance to the
production of death. It is not sufficient to show that it
casually shared in producing death, but rather it must be
shown that there was a causal connection.
(2) Generally, minor service-connected disabilities,
particularly those of a static nature or not materially
affecting a vital organ, would not be held to have
contributed to death primarily due to unrelated disability.
In the same category there would be included service-
connected disease or injuries of any evaluation (even though
evaluated as 100 percent disabling) but of a quiescent or
static nature involving muscular or skeletal functions and
not materially affecting other vital body functions.
(3) Service-connected diseases or injuries involving
active processes affecting vital organs should receive
careful consideration as a contributory cause of death, the
primary cause being unrelated, from the viewpoint of whether
there were resulting debilitating effects and general
impairment of health to an extent that would render the
person materially less capable of resisting the effects of
other disease or injury primarily causing death. Where the
service-connected condition affects vital organs as
distinguished from muscular or skeletal functions and is
evaluated as 100 percent disabling, debilitation may be
assumed.
(4) There are primary causes of death which by their very
nature are so overwhelming that eventual death can be
anticipated irrespective of coexisting conditions, but, even
in such cases, there is for consideration whether there may
be a reasonable basis for holding that a service-connected
condition was of such severity as to have a material
influence in accelerating death. In this situation, however,
it would not generally be reasonable to hold that a service-
connected condition accelerated death unless such condition
affected a vital organ and was of itself of a progressive or
debilitating nature.
During his lifetime, the veteran established service
connection for post-traumatic stress disorder, rated as 50
percent disabling.
The veteran's death certificate indicates that he died on May
[redacted], 2004 at the age of 55. The cause of death listed on his
death certificate was congestive heart failure. Also listed
under the heading "other significant conditions" was atrial
fibrillation. The death certificate contains no indication
that the cause of death was related to service. Post-
traumatic stress disorder was not mentioned.
The veteran's service medical records show that the disorders
noted on the death certificate were not present during
service. The report of an examination conducted in June 1970
for the purpose of separation from service shows that
evaluation of the heart was normal. A chest X-ray reportedly
was normal. The veteran's blood pressure was 114/74.
There is also no evidence that that a cardiovascular disorder
was manifested within one year after service. The earliest
medical evidence of heart problems is from many years after
separation from service. For example, an echocardiogram
report from the Atlanta Heart Associates dated in July 2003
reflects that the veteran had findings consistent with
dilated cardiomyopathy and biventricular hypertrophy and mild
to moderate valvular heart disease. The report contains no
mention of his period of service.
With respect to the contention that the death was secondary
to the service-connected disability, the Board has reviewed
the evidence which is of record which pertains to the
service-connected post-traumatic stress disorder.
The Board notes that the evidence includes an opinion linking
the veteran's service-connected disorder and his death. In
this regard, a VA treatment record dated in September 2003
contains an assessment of CHF [congestive heart failure]
secondary to Etoh Abuse caused by PTSD. No explanation was
given as to the basis of that conclusion. A letter dated in
July 2005 from the same VA physician who prepared the above
referenced medical record in September 2003 indicates that
the veteran had chronic medical conditions including heart
failure caused by amyloidosis and post traumatic stress
disorder which exacerbated his condition.
Significantly, however, there is another more convincing
medical opinion which weighs against the claim. The opinion
dated in March 2008 was prepared by a VA cardiologist. The
cardiologist noted that an insignificant contribution from
chronic alcohol abuse attributed in part to the presented of
PTSD could not be completely excluded. However, the
cardiologist's ultimate opinion was that it was unlikely that
the patient's 50% service-connected diagnosis of PTSD
meaningfully contributed to the death from congestive heart
failure. The cardiologist noted that the veteran first
developed clinical signs of congestive heart failure and
atrial fibrillation in 2003. Investigation for the causes of
the CHF included nuclear perfusion scanning and
echocardiography, and cardiac catheterization in July 2003.
These studies were noted to be important in exclusion of
coronary artery disease or heart attack as the source of his
problems, hence the diagnosis of non-ischemic cardiomyopathy.
The VA cardiologist noted that there was a long history of
alcohol abuse in this patient. The VA cardiologist further
noted, however, that additional diagnostic evaluations
including an endomyocardial (heart) biopsy revealed the
presence of cardiac amyloidosis, as specific cause of heart
failure. The VA cardiologist stated that there was no
evidence that emotional factors or alcohol caused amyloid
disease of the heart or other organs. The cardiologist
further stated that alcoholic heart muscle disease causing
CHF is most often characterized by substantial enlargement of
all heart chambers, weak contraction of the heart and little
if any increase in the thickness of heart walls, and
sometimes actually thinning. Amyloid heart disease, in
contrast, was typically characterized by abnormally increased
thickness of the heart walls, absent or only mild increase in
the size of the heart chambers, and depressed contraction of
the heart. The cardiologist stated that the veteran's
findings were most compatible with the biopsy proven
diagnosis of amyloid heart disease. The cardiologist noted
that opinion by the VA treating physician in July 2005 that
the PTSD had exacerbated the condition, but the VA
cardiologist disagreed and stated that the PTSD could not be
invoked to have significant impact on the veteran's heart
disease. The VA cardiologist summarized his findings by
stating that:
In the opinion of this reviewer, the medical facts
of this case do not support any reasonable
contribution of service connected PTSD to the
development of congestive heart failure due to
amyloidosis. The circumstances of the patient's
death are not contained in the record, but there is
no evidence that PTSD was substantively related to
the veteran's death.
The Board finds that the opinion of the VA cardiologist in
March 2008, which weighs against the claim, has greater
probative value than the earlier opinion from the VA treating
physician. In this regard, the Board notes that the VA
cardiologist's opinion was based on review of the veteran's
claims file and was therefore a fully informed opinion. The
cardiologist also gave a much more detailed explanation of
the basis for his opinion. Moreover, the VA cardiologist's
opinion appears to be more consistent with the physical
evidence such as the heart biopsy.
In summary, the evidence shows that the diseases which
resulted in the veteran's death were not present during
service or manifested within one year after service. The
disorders noted on the death certificate were not related to
any incident during service. Moreover, the weight of the
medical evidence shows no relationship between the service-
connected disorder and the veteran's death. The post-
traumatic stress disorder did not cause or aggravate the
congestive heart failure and/or atrial fibrillation. The
death was not proximately due to or the result of the
service-connected disabilities, and the service connected
disabilities did not materially accelerate the death.
Accordingly, the Board concludes that a service-connected
disability did not cause or contribute substantially or
materially to cause the veteran's death.
Finally, the Board notes that on November 9, 2000, the
Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38
U.S.C.A. § 5100 et seq.) became law. Regulations implementing
the VCAA have been published. 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a). Under the VCAA, when VA receives a complete
or substantially complete application for benefits, it is
required to notify the claimant and his or her
representative, if any, of any information and medical or lay
evidence that is necessary to substantiate the claim.
To that end, VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim; (2) that VA will seek to provide; (3)
and that the claimant is expected to provide. The appellant
was notified of the VCAA as it applies to her present appeal
by correspondence dated in October 2004. The VCAA notice
letter provided to the appellant generally informed her of
the evidence not of record that was necessary to substantiate
her claim and identified which parties were expected to
provide such evidence. She was notified of the need to give
VA any evidence pertaining to her claim. Furthermore, her
contentions reflect an awareness of the particular
requirements to substantiate a claim for dependency and
indemnity compensation (the benefit awarded when service
connection for the cause of death is established) based on a
service-connected or nonservice-connected condition, as
required by the holding in Hupp v. Nicholson, 21 Vet. App.
342 (2007). The appellant has not claimed that VA has failed
to comply with the notice requirements of the VCAA and the
Board finds that the provisions of the VCAA have been fully
satisfied.
The VCAA duty to assist requires that VA make reasonable
efforts to assist the claimant in obtaining evidence
necessary to substantiate a claim. See 38 C.F.R. § 3.159. In
this case, the veteran's service medical records and all
identified and authorized post-service medical records
relevant to the issue on appeal have been requested or
obtained, including treatment records.
Next, in claims for compensation, the VCAA duty to assist
requires VA obtain medical opinions when necessary for an
adequate decision. The Board notes that an opinion was
obtained from a medical expert regarding the cause of the
veteran's death. The Board has also reviewed the other
medical statements. The available medical evidence is
sufficient for an adequate determination. Therefore, the
Board finds the duty to assist and duty to notify provisions
of the VCAA have been fulfilled.
ORDER
Service connection for the cause of the veteran's death is
denied.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs